Whiplash is one of the most common injuries sustained in a motor vehicle collision. Whiplash is caused by a forceful, rapid back-and-forth movement of the neck. It can occur in both low impact and severe impact collisions. Minor whiplash injuries may resolve with rest and over-the-counter medication, while more severe injuries may require therapy and diagnostic imaging to rule out a more serious injury. Clients who were recently involved in a motor vehicle collision often ask how much a specific injury will be awarded in damages. The answer depends on the specific facts involved in each individual case.
The first, and most important, part of a personal injury or whiplash claim is the injured motorist’s medical treatment. The amount of a potential settlement depends on the individual’s specific damages. Without damages, a civil suit cannot move forward. Evidence of physical damages can be proven through medical records or testimony from a plaintiff’s treating physicians. The length of time it takes to complete medical treatment, and the potential amount of a future settlement offer, varies according to the severity of the whiplash injury. A minor whiplash injury that requires little to no medical treatment would probably resolve quickly and would, without considering any other factors, likely result in a nominal settlement offer. In contrast, a severe whiplash injury that results in permanent damage to the spine may take months or years of therapy to resolve. The more severe injury would likely result in a larger settlement to make the client whole again. It is extremely important to understand the full scope of a whiplash injury before attempting to reach a settlement with an insurance company or individual. Once a case has reached a mutual settlement, or jury verdict, it is often impossible to re-open the case even if new injuries are discovered at a later date. As such, it is important to know the complete scope of a whiplash injury, and the total amount of a plaintiff’s damages, before any attempts are made to settle the case.
While an injured motorist is receiving medical care for a whiplash injury, an attorney should be gathering evidence to support the pending claim. A defendant will often try to lessen his or her liability by claiming the other driver was partially at fault for the collision. It may be important to obtain eyewitness testimony, if possible, to refute any such claims by the at fault party. If witnesses are not available, it may be possible to hire an engineering expert to recreate the collision based on physical evidence left on the scene. Photographs taken immediately after the collision may also be important if the at fault driver changes his or her story in the future. Photographs of all the vehicles involved, even if taken several days later, can still be invaluable as evidence of the severity of the impact.
At some point during the course of treatment for a whiplash injury the injured motorist should be place at maximum medical improvement (MMI) by their treating physicians. Maximum medical improvement occurs when an injured motorist’s recovery has plateaued. Additional treatment may continue to alleviate whiplash symptoms, but at MMI no further recovery or improvement is anticipated. At this point in the case the damages can be more accurately calculated. Settlement discussions usually begin at this point by preparing and sending the at fault party, or their insurance carrier, a demand package. The demand package includes the claimant’s theory of liability, an explanation of why the other party is responsible for the whiplash injury. The demand package will also include evidence to support that theory of liability such as eyewitness affidavits, photographs, and expert reports. The package will also include evidence of the injured party’s damages. This evidence is typically medical records and bills from his or her treating physicians. Treating physicians may also have included opinions as to the necessity of future medical care. This demand package will include a settlement offer and a time frame in which the at fault party must respond. The settlement offer should be based off a careful calculation of all of the injured party’s damages. Damages for a whiplash injury may include, past and future medical bills, lost wages, loss of future earning capacity, property damage, out-of-pocket expenses, and pain and suffering,
If a settlement agreement is unable to be reached after submitting a demand package and subsequent negotiations the injured party will need to file a civil lawsuit. The length of time it takes from the date of filing until a case is tried in front of a jury depends on the county in which the case is filed and the complexity of the case. Once the case reaches a jury the attorney will present all the evidence of the client’s whiplash injury. The defendant’s attorney will generally attempt to dispute liability, often arguing his or her client is not 100% at fault for the cause of the injury. The defense attorney may also challenge and attempt to refute the plaintiff’s claim for damages. It is not uncommon for the defendant to hire expert witnesses to rebut the cause or severity of the plaintiff’s injury. Once both the plaintiff and defendant have presented their case the jury will determine if the defendant is liable for the plaintiff’s injuries, and if so they will award the plaintiff damages.
Florida’s comparative fault law mandates that a defendant is only liable for damages based on his or her own percentage of fault. Therefore, if a jury finds the defendant to be 80% at fault and the plaintiff 20% at fault for a whiplash injury, the jury award for damages would be reduced by the plaintiff’s percentage of fault. For example, in the above scenario if the jury awarded the plaintiff $10, the award would be reduced by $2.
Every whiplash case has a unique set of facts which will determine the value of the case. Generally speaking, minor whiplash injuries would be awarded less in damages as compared to a severe whiplash injury. However, a settlement or jury award may also be impacted by the comparative fault of the plaintiff. Therefore, it is important to consult with an experienced whiplash attorney to ensure your damages are properly calculated and that the evidence required to prove your case to the jury is obtained.
